New study shows how Educational Savings Accounts are constitutional in NH

CONCORD —A legal review by the Institute for Justice, done in conjunction with the Josiah Bartlett Center for Public Policy, shows that Educational Savings Accounts (ESAs) are constitutional under both the New Hampshire and United States constitutions.

“There is no doubt that an ESA program in New Hampshire would comport with the U.S. Constitution, and in this paper we conclude that the program would also pass muster under the New Hampshire Constitution,” Institute for Justice Senior Attorney and report co-author Richard Komer said.

The paper, “The Constitutionality of Educational Savings Accounts in New Hampshire,” by Komer and Institute for Justice Attorney Timothy Keller, reviews court opinions that have been issued in relation two New Hampshire’s two constitutional provisions written to prohibit direct taxpayer financing of sectarian religious instruction.

“These two provisions, properly interpreted, do not preclude religiously neutral educational assistance programs that aid parents and families rather than private and religious schools per se,” the study concludes.

The study is relevant to the ongoing debate over Educational Savings Accounts in New Hampshire. A bill to establish ESAs, Senate Bill 193, was retained in committee in the Legislature this year and could be brought forward next year.

“Legal questions about the use of public funds to educate our children can be confusing given the complex history and competing public interests involved,” Andrew Cline, interim president of the Josiah Bartlett Center for Public Policy, said. “This paper provides some much-needed clarity to show that there are, in fact, ways that Educational Savings Accounts can meet constitutional muster in New Hampshire.”

Educational Savings Accounts are restricted financial accounts that can be used for a limited array of educational purchases. A family that does not find the local public school satisfactory may have a child’s per-pupil allotment of school funds deposited into the account. That money can then be spent (typically via debit card) to purchase an education not necessarily provided by the local public school.

Copies of the study are available on the Josiah Bartlett Center for Public Policy’s website, www.jbartlett.org (see link below).